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Q6 in the Lofstedt review asks: 'To what extent does the concept of ‘reasonably practicable’ help manage the burden of health and safety regulation?'
I am not sure what purpose this question has with regards to the so-called 'burden of health and safety regulation'? I think most practitioners understand what 'reasonably practicable' means in a health and safety context, even if we disagree sometimes in its application. Perhaps it is a very good question. After all, we use the rubric quite often when discussing the extent to which risk should be managed, but does the phrase serve any real purpose I wonder?
Furthermore, despite one’s best efforts in managing health and safety to the ‘reasonably practicable’ standard, ultimately it is for the courts to decide whether the ‘reasonably practicable’ test has been met or otherwise.
Interested in your take on the Lofstedt question or just comments on the application of the 'reasonably practicable' concept.
Ray
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sfarp is surely a pivotal and long-standing element of our modern non-prescriptive H&S legislation.
'batneec' used to provide an environmental equivalent (I can't recall off-hand what batneec was replaced by).
Arguably, all and any attempts at legislative compliance constitute a "burden" of some sorts.
The alternatives? Absolute, prescriptive legislation? (Many ill-informed employers cry out for this). I think not.
sfarp is well defined, and associates with ACoP/ industry best practice. As you say the ultimate test of what is "reasonable" will always rest with the Court.
p.s. Do we have any H&S legislation left where the test is "so far as is practicable"? (no 'reasonable' qualifying term). I seem to recall COSHH once had this for certain Regs (LEV maybe?).
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Rank: Super forum user
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ron hunter wrote:
p.s. Do we have any H&S legislation left where the test is "so far as is practicable"? (no 'reasonable' qualifying term). I seem to recall COSHH once had this for certain Regs (LEV maybe?).
Regulation 11, PUWER
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Rank: Super forum user
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SFARP is only well defined, I think, where there is established industry 'good practice' to guide the decision. It is very difficult to decide what it means in a context where someone has not already made the decision (or similar decision). For example, it is often difficult to establish what reasonably practicable might mean in CDM regulation 11, when a designer is considering a unique structure in a unique situation.
The answer is sufficiently unclear that institutions periodically try and address it - for example, most recently, see http://www.shponline.co....ers-enlightened-on-sfarp
To quote from the report referenced in that article:
Quote:
1.5 The question inevitably arises, what does SFARP mean? How does a duty holder know when the requirement has been satisfied? The answers to these questions are not generally provided by the legislation or by the enforcing agency (HSE in the case of most construction work) other than in general terms. As is the practice under UK law , case law has assisted with the interpretation of the Act. On this basis it is generally understood that SFARP means that efforts should continue to be made to eliminate hazards or reduce risks until the effort (i.e. the implementation of safety measures) expended is grossly disproportionate to the risk or benefit gained. This takes us some way forward but still leaves a question mark over quite what the Court/Jury would consider to be ‘grossly disproportionate’ and hence the limit of required endeavours.
and
Quote:
1.9 Despite the apparent simplicity of this statement, its practical application, within the framework of SFARP, remains uncertain within the design community. How do Designers determine the point at which any actions taken have reached the point of ‘gross disproportion to the benefit’? How does this square with ‘best, good or accepted practice’? What happens when there is no obvious ‘measure’ against which to judge the action taken? How is ‘due account of other relevant design considerations’ factored in? How do contractual boundaries affect the discharge of this obligation?
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Rank: Super forum user
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Ray,
I don't think reasonably practicable helps "manage" the burden of legislation but I do think that it gives a leaway for judgement as against prescriptive legislation.
Example
I would rather be able to look at a work at height situation, discuss with the person doing the work etc and
come to the conclusion that we can use a ladder if we put in control measures a,b,c, etc than from the start have to use a scaffold/mewp because the legislation says that "ladders cannot be used for task that will take more than 25 minutes in total or is above 5 metres"
With reasonably practicable myself and others can use our competence to make a decision which balances health & safety, operational considerations, cost, customer requirement to gain a beneficial outcome without the process being dictated from the start by some bureaucrat.
I will stop there before I rant at the latter
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Ray: If SFAIRP is used then S40 HASAWA requires a presumption of guilt, which is not the case for an absolute duty. Proving yourself completely innocent is extremely hard, if not impossible, as several of my clients have found out over the years, and so I think that SFAIRP is of little real use. At least with an absolute duty there's a simple test for compliance and you are innocent till proven guilty.
SFAIRP is not a feature seen in EC Directives and the HSE have assiduously being writing in absolute duties all over new regulations for the past 20 years, so I rather think it is likely to continue to diminish as a legal concept.
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Rank: Super forum user
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Dave, excellent points if I say so myself. I agree the HSE and the justice system have taken employer's liabilities to areas not previously envisaged 20-40 years ago. This has in effect emasculated SFAIRP standard to little more than a 'soundbite' from a legal perspective. R v HTM is an interesting case based of the reasonably foreseeable concept - a defence to s40.
Interestingly, the Corporate Manslaughter Act does not make a reference to SFAIRP as far as I can recall, even though '8 Factors for jury' asks them to consider any breaches in h&s legislation or guidance.
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Rank: Super forum user
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My simplistic view is that it will take someone to get seriously dead, burnt, drowned, boiled and then eaten by some sort of flesh-eating bug to get that little phrase cleared up in a court of law.
I don't think we'll ever be able to make things safe, we just do what we can. At the end of the day it is not possible to take all Hazards or risks away, we just do what is within the realms or human nature. People do die of some daft things that, in hind sight, may have been avoided if someone had spent 5,000,000 pounds to drain the lake and put wheels on the rowing boats, removed the oars etc. If it says..'do not touch' what good is that to a blind man? I snapped a ligament in my right knee tripping on the razed lumps on a road crossing in Swansea. The little red lumps were put there so the blind knew where they were in relation to the curb. Says it all.
This may not make sense, more of a deluded rant, sorry if that's the case, the mods will take it out I hope
Bob
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Rank: Super forum user
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It seems to me that the entire review will hinge on the response and evidence arising from Q7:
"Are there any examples where health and safety regulations have led to unreasonable outcomes, or to inappropriate litigation and compensation?"
If the answer here is no, then the obvious conclusion is surely to leave well alone?
Presumably the UK cock-up in implementing the EU parent Directive via Control of Asbestos Regs will emerge in response to Q9.
Full question set and document at: http://www.dwp.gov.uk/do...dt-call-for-evidence.pdf
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We do to contribute to lower risks ASAIRP but on a mathematical perspective or even nature law, this is difficult to come to a zero injury or accident (i.e Gaussian distribution use for quality of materials). What we design, manufacture, build, install have and will have a “tolerable” risk of imperfection.
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Rank: Super forum user
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In some circumstances "reasonably practicable" does not apply.
"Every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled." - Control of substances hazardous to health regulations (COSHH) - Section 7(1)
Note that reasonably practicable only applies to prevention and not to 'adequately controlled'. However, nowhere in COSHH is adequately controlled properly defined, at least not for skin exposure. So, in effect, we have a regulation that the employer is required to comply with, but where it does not state what he or she has to do!
Chris
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Ray
I think in this kind of review it is useful to review the ‘reasonably practicable’ concept. Given the HSE has battled for 18 years with the European Union to keep the concept, they certainly must think it has some value. So:
1 You can only find out how it applies to specific issues by looking at case law and prosecutions. In other words keep guessing till you get it wrong and a judge will decide whether your actions were ‘reasonably practicable’.
2 A review of fatal injuries reveals that most die from lack of applying safe systems of work that required relatively little to prevent both in terms of working practice and cost.
3 Many people have put together guidance at a sector level that helps – but does not define – what may be considered ‘reasonably practicable’ at a sector level.
4 In the current review of regulations, it may be more relevant if attention was focused onto how best the regulations can be applied. This would lead to a discussion about Approved Codes of Practice. If we went back to Robens original idea for ACoPs the expectation was that they were drafted by various organisations in respective sectors. The idea was to have appropriate standards that were ‘reasonably practicable’ because – essentially – they had been agreed by the respective sector.
While much sector based guidance has developed, ACoPs tend to be a more detailed explanation of the regulations.
When I first started as a safety rep I was told that an ACoP was akin to the Highway Code in relation to highways offences. When I look at the Highway Code – as I still do! – it is very prescriptive. Perhaps if we could find a way for the HSE to be able to be the facilitator for developing authoritative guidance on a sector basis, it can address what is ‘reasonably practicable’ for a sector.
Cheers.
Nigel
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Chris.Packham wrote: Note that reasonably practicable only applies to prevention and not to 'adequately controlled'. However, nowhere in COSHH is adequately controlled properly defined, at least not for skin exposure.
Chris, but then COSHH says,
7. (3) Where it is not reasonably practicable to prevent exposure to a substance hazardous to health, the employer shall comply with his duty of control under paragraph (1) by applying protection measures appropriate to the activity and consistent with the risk assessment
and
(c) where adequate control of exposure cannot be achieved by other means, the provision of suitable personal protective equipment
later,
(9) Personal protective equipment provided by an employer in accordance with this regulation shall be suitable for the purpose and shall –
(a) comply with any provision in the Personal Protective Equipment Regulations 2002(a) which is applicable to that item of personal protective equipment;
so doesn't all that go some way to explain adequate control of skin hazards?
JohnW
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Nigel, thanks for your detailed post.
I am still not convinced of the value of Q6 or indeed the term 'reasonably practicable' per se. The Lofstedt review is open to comments from anyone, hence I feel that members of the public will struggle with this particular question. I think we agree that the term is problematic despite the HSE fighting the EU to keep it in legislation, or at least, some legislation.
Today there is so much prescription in the form of Regulations, ACoPs, Guidance and company policies that there is little requirement to use the term reasonably practicable. The only time I might use the term on a working basis is when describing the standard which must be met - normally to a layman and no doubt it means little to him/her either. It has become by and large redundant, with exception when used in court and therein lies the problem. Only by comparing case law can one really understand the benefits, or perhaps that should be the disadvantages if being prosecuted, of such a term. Reasonably practicable could be replaced with many other terms, but no doubt would be equally nebulous.
The term As Low As Reasonably Practicable (ALARP) is also pretty meaningless as there is no standard which is As Low...the standard is 'reasonably practicable' as defined in Edwards v National Coal Board [1949] All ER 743 (CA). We British have a penchant for inventing words, phrases and acronyms for some unknown reason.
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JohnW wrote:
"so doesn't all that go some way to explain adequate control of skin hazards?"
Not for me! In our daily lives, including at work, we cannot avoid skin contact with chemicals. Many can be beneficial up to a certain level of exposure, and harmful beyond that. Take as an example water. We use it to wash off other harmful chemicals from the skin. We need a certain water content in the skin for it to perform properly. But excessive exposure to water, i.e. what is termed 'wet work', is one of the most common causes of occupational skin disease. At what level of exposure does water cease to be beneficial and become harmful? This can vary from situation to situation and from person to person.
If I may quote a world renowned dermatologist (Prof. H. I. Maibach) speaking on contact dermatitis: "There is probably no such thing as a non-irritant substance. Given sufficient exposure any substance can become irritant to the skin."
And from "Occupational skin diseases and dermal exposure in the European Union (EU-25): policy and practice overview, European Agency for Health and Safety at Work, 2008":
“However, there is no scientific method of measuring the result of the body’s exposure to risks through dermal contact. Consequently no dermal exposure standards have been set.”
As a member of the Dermal Exposure Network of the EU back in the 1990's we spent three years looking into this problem and concluded that development of exposure limits for skin was simply not possible as there were so many variables that could affect what was a safe level of exposure for a particular person.
Furthermore, the most common form of occupational skin disease, irritant contact dermatitis, is both chronic and multifactorial, i.e. due to repeated exposures to many different chemicals over a period of time. So with someone whose work exposes them to several different chemicals during their working day, the individual exposures may not be the whole picture.
The reality is that this is a far more complex aspect of risk assessment than most realise.
Chris
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Imagine HSWA without SFAIRP - you would have to 'ensure' the health safety and welfare of ...... no matter what the cost.
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The reason we rely on reasonably practicable is to do with the way that English courts interpret the law. Essentially English courts apply the law literally, the law is what it says; that if a regulation says “an employer shall prevent all injuries at work” then if any anybody is injury the employer is liable and that is an end to it. In Europe, where the legal tradition is based on Roman law, judges tend to take a “purposive approach” where they look at the context and aims of the legislation as much as the literal meaning. So they look at each case and decide how the law should be applied in that case. Furthermore in many European countries there is no case law- no precedent. This means that each case is looked at from scratch and again judges can make things up as they go along.
It is therefore important that when duties are imposed the SFARP qualification is used in English law as we would end up either with a load of absolute specific duties or we would have to completely change our legal system to one based on purposive interpretation of laws.
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Rank: Super forum user
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Chris.Packham wrote:
Not for me! ...... "There is probably no such thing as a non-irritant substance. Given sufficient exposure any substance can become irritant to the skin" .........“However, there is no scientific method of measuring the result of the body’s exposure
Chris, yes that's all very well - I have attended one of your lectures :o))
But just check again what I said,
"(COSHH/ppe) so doesn't all that go some way to explain adequate control of skin hazards?"
I'm saying all the COSHH statements about ppe do go SOME way to explain adequate control. Can't deal with all the issues you describe but where contact can't be prevented the PPE advice can lead to adequate control in many situations, surely you agree.
JohnW
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JohnW
Gloves, if selected and used within their performance limits (not always easy to establish, however) can prevent exposure, so 'adequately control' would not apply. However, as with all PPE gloves fail to danger, to the possibility and consequences of failure need to be risk assessed.
What I was referring to is that where contact between chemical and skin is not easily avoided there is no defined exposure limit that tells you what is required for adequate control. As a, perhaps simplistic, example take water. We use it to wash off other, possibly more hazardous chemicals. However, excessive exposure to water (i.e. wet work) is a very common cause of occupational contact dermatitis. At what level of skin exposure to water would one consider this not longer represents adequate control? There are literally hundreds of chemicals that we come into contact with daily, often without considering them as chemicals, that can, if exposure is sufficient, initiate a skin reaction. Incidentally, many of these will never appear on a safety data sheet. In some cases with some people a minimal exposure will initiate a skin reaction, whereas other people will remain unaffected. Where does one set the skin exposure limit?
Chris
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Thanks Chris and John for your input, I am now losing the will to live...can we move on?
Ray
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That's fine Ray, I already did :o)
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A Kurdziel - good point about the case law.
Should we not be looking at individual cases on merit rather than an instance where a similar scenario was subject to review circa 20 years before?
Does case law still have a place in this society with little heavy indusrty et al in the 21st century?
David
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David
The UK legal system recognises past cases as being relevant by having an influence through case law and the stare decisis precedent. However, today judges are less bound by previous case law and often use obiter dictum, for legal illustration or argument, on the basis that very few cases have the same material facts. The purpose of case law is to ensure consistency and fairness.
The problem is that the law is constantly in a state of flux. Cases of yesteryear would not necessarily provide the same outcome in court today. This is particularly so with health and safety law which has moved on a great deal in modern times. The 'reasonably practicable' concept is inextricably linked to strict liability offences, not without some criticism either due to s40 (reverse burden of proof) which requires the accused to show that they did all that was reasonably practicable, or practicable, to comply with a duty.
Hence the SFAIRP qualification is problematic due to interpretation by the court, outcome (ie hindsight), case law and HSE guidance.
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I think what the Löfstedt review is about is that fact that many SME etc do not like the concept of SFARP or are very uncomfortable with the idea of risks assessment. They’d rather go back to a fully prescriptive form H&S. So we’d go back to the Factories Act approach where the H&S processionals’ job would be to simply go through the regs and identify the duties that applied and then create a checklist of actions that you would go through. Simples. The only problem was that under the old legislation it was possible to injury someone, but get away with it because you had complied with the SPECIFIC duties described in the legislation. But this did not apply to the duty of care established in common law, (Wilson and Clyde v English) which meant that the employer could get sued. What then happened was that the unions and others would create stink and a new (often very specific) set of regs would be introduced to deal with this issue. It was exactly this process that Robens was so critical of; with legislation trying to chase what was happening in the workplace.
If they managed to get rid of SFARP and risk assessment process they would have to do something about the common law of negligence- essentially saying if you injured at work but no specific duties have been broken then tough. This would not go down well anywhere really except in the more backward parts of industry.
Alternatively they could look again at following the rest of the world and introducing a no fault system of compensation like every other country in the world has. But that would hurt the lawyers.
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